Judges Should Avoid ‘Acquitted Conduct’ in Determining Criminal Sentences, TCP Says

A judge sentencing a defendant convicted of a crime should not be allowed to consider alleged conduct for which the individual has already been acquitted, The Constitution Project said in a friend-of-the-court brief filed late October 21 asking the U.S. Supreme Court to consider the case of former Alabama Governor Don Siegleman.  In its brief, TCP said that when a court increases a sentence based on acquitted conduct, it oversteps its sentencing authority granted by the jury, in violation of the Sixth Amendment.

“The Founders clearly intended that the jury play a central role in our system of justice, and allowing judges to ignore the will of the people by increasing sentences on the basis of conduct for which a jury has found a defendant not guilty is inconsistent with that intent.  Acquitted conduct should have absolutely no place in sentencing,” said TCP President Virginia Sloan in a press release.

In 2006, a federal jury convicted Siegelman of appointing former HealthSouth CEO Richard Scrushy to a state board in exchange for campaign donations.  However, in determining Siegleman’s sentence, the judge considered not only the crimes for which the jury found him guilty, but also several charges on which he had been acquitted, substantially increasing the length of his sentence.

The Constitution Project Sentencing Initiative convened a blue-ribbon committee of current and former judges, prosecutors, defense attorneys, scholars, and sentencing experts to examine principles for sentencing.  Chaired by President Reagan’s Attorney General, Edwin Meese, and President Clinton’s Deputy Attorney General, Philip Heymann, the Initiative’s 2006 report criticized the use of acquitted conduct in criminal sentencing.

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